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Rivera v. Arana

May 09, 2001

MARGARITA RIVERA, MOTHER AND NEXT FRIEND OF OSVALDO RIVERA, A MINOR, PLAINTIFF-APPELLANT,
v.
ENRIQUE ARANA, M.D., DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Burke

Not Released For Publication

MARGARITA RIVERA, MOTHER AND NEXT FRIEND OF OSVALDO RIVERA, A MINOR, PLAINTIFF-APPELLANT,
v.
ENRIQUE ARANA, M.D., DEFENDANT-APPELLEE.

The opinion of the court was delivered by: Justice Burke

Appeal from the Circuit Court of Cook County.

Honorable Kathy M. Flanagan, Judge Presiding.

 Plaintiff Margarita Rivera, as mother and next friend of Osvaldo Rivera, a minor, appeals from an order of the circuit court granting defendant Dr. Enrique Arana's motion for summary judgment based on the court's determination that defendant was immune from medical malpractice liability pursuant to the Good Samaritan Act (745 ILCS 49/25 (West 1998)). On appeal, plaintiff contends that the trial court erred in granting summary judgment because genuine issues of material fact existed. She also contends that the immunity provided by the Good Samaritan Act should not apply to a cause of action against a physician under the Abused and Neglected Child Reporting Act (Child Reporting Act) (325 ILCS 5/4.02 (West 1998)). For the reasons set forth below, we affirm.

STATEMENT OF FACTS

On September 20, 1994, Dr. Arana treated Osvaldo Rivera (Osvaldo), the minor child of plaintiff, for a foot infection when his aunt, Marie Baez, who was then Osvaldo's legal guardian, brought him to Arana's office. On July 3, 1997, plaintiff filed a medical malpractice complaint against Arana, alleging that he failed to take an adequate history or perform an adequate examination of Osvaldo, he failed to record signs of child abuse, and he failed to report suspected child abuse. Defendant answered and, as an affirmative defense, alleged that the Good Samaritan Act barred plaintiff's claims. Thereafter, on December 30, 1999, defendant filed a motion for summary judgment based on lack of liability pursuant to the Good Samaritan Act.

Dr. Arana presented his deposition and the depositions of Marie Baez and Gloria Miranda in support of his motion for summary judgment. Arana, in his deposition, stated that he is an anatomical and clinical pathologist as well as a general practitioner at the Pro-Health Medical Center in Chicago. In September 1994, three other doctors were working in the clinic with him and two medical assistants, one of whom was Miranda.

Arana saw Osvaldo only one time on September 20, 1994. Arana's records regarding Osvaldo included an information/consent for treatment form and his handwritten notes. Arana's notes stated that Osvaldo was brought in by his aunt, Baez. Arana was seeing one of Baez's children and Baez asked that he also examine Osvaldo for infected feet. According to Arana, Osvaldo was an add-on patient because Baez requested of his medical assistant "to be seen by [Arana] as an add-on without an appointment." Arana further stated that seeing Osvaldo "was sort of a[n] emergency, because [Baez] had -- she requested to be seeing [sic] the child as an emergency." Baez told Arana that she was Osvaldo's legal guardian, that she had no money, and she did not have a public aid medical card for Osvaldo. Arana told Baez that that was okay and that he would see Osvaldo. In taking a history, Baez did not know about Osvaldo's family history, nor whether he had an immunization card. Baez stated that Osvaldo was living with her because his mother did not want him. She told Arana that she was in the process of getting legal guardian papers for Osvaldo and a public aid card.

Dr. Arana performed a routine examination upon Osvaldo, which he stated took 15 to 20 minutes. Osvaldo was a normal child with normal health, except that he was thin and underweight for his age (three years). It was Arana's belief that Osvaldo suffered from poor nutrition. Upon examination of Osvaldo's feet, Arana noted that the plantar surfaces of his feet were slightly infected. Both feet showed superficial ulcers on the anterior surfaces, close to the toes. There was mild inflammation, indicated by slight redness, and infection, indicated by slight yellow discoloration. There were no open wounds, no odor, and no pus. Because both feet were similar, Arana asked Baez if Osvaldo had been walking around barefoot since many children get foot infections from walking around barefoot. Baez did not know. Baez also did not know what happened to cause the foot condition and could not provide any information on how long the condition had existed. Arana gave Baez a prescription for an antibiotic and topical ointment. *fn1

Dr. Arana further stated that he did not notice anything that appeared to be a burn. He had seen cigarette burns before and Osvaldo's feet did not have any cigarette burns on them, nor did he see any marks that appeared to be healed burns. Arana did not have any discussion with Baez about abuse at home and, when he saw Osvaldo, there were no signs of child abuse as far as medical evidence and he never considered the possibility that Osvaldo was a victim of child abuse. He learned later from his attorney that Osvaldo was a victim of child abuse. Arana further stated that he had attended many seminars on child abuse and, when he examined Osvaldo, he was aware of the statute requiring reporting of suspected child abuse.

Because of Osvaldo's low weight, Dr. Arana believed that Osvaldo needed a cell blood count (CBC) and a Chem 20 test to rule out anemia. He advised Baez that she should bring Osvaldo back the next week for these tests, with or without a public aid card. According to his testimony, Arana wrote on Osvaldo's chart, "return one week, and then no charge because she didn't have any money or public aid card." Arana did not charge Baez for the visit "[b]ecause she didn't have any money. This woman was poor, and she requested to be seen as an emergency, as an add-on-case, stating to Gloria Miranda that she didn't have a Public Aid card." Arana testified that he does a lot of charity cases.

Marie Baez, in her deposition, stated that she was Osvaldo's aunt; her brother was the boy's father. Osvaldo lived with her most of his life, on and off. His mother, Margarita Rivera, abandoned Osvaldo when he was a couple of weeks old by leaving him on a street corner with his father. Baez further stated that her brother would often bring Osvaldo to stay at her home. Baez took Osvaldo in because her brother would leave him with everyone and anyone, "dope heads, crack heads, anybody." When her brother was jailed, Osvaldo began to live with Baez permanently. Osvaldo's mother never had any contact with him during the time he was with Baez, even though Baez attempted to arrange contact between Rivera and Osvaldo.

Baez further stated that every time Osvaldo came to her home, he had lice. She also stated that Osvaldo always had pink eye, was congested, and sick. She further stated that Osvaldo had had problems in the past with foot fungus or infection. However, she never took Osvaldo to a doctor until he began to live with her permanently. She treated him herself because she had three of her own children and knew how to take care of them. Baez also stated that she got temporary custody of Osvaldo when her brother went to jail so that she had a right to take him for medical treatment.

Baez further stated that she first brought Osvaldo to Dr. Arana for pink eye, but she could not remember when. When she took Osvaldo, one of her own children had pink eye. According to Baez, Arana looked at Osvaldo, told her he had pink eye, but stated that he could not give her a prescription because she had no public aid card. Baez received medication for her own child, which she used for both children. Baez was not charged for this visit.

Baez also stated that when her son had the measles in September 1994, she took him to Dr. Arana, and also brought Osvaldo who had a foot fungus, although she did not have an appointment for either child. According to Baez, Osvaldo had blisters of pus on his feet, the skin was peeling, there was cracking between the toes, the feet were sweaty, and stunk. Baez denied that there were any burns on his feet. Baez further stated that Arana simply looked at Osvaldo's feet. She denied that Arana examined Osvaldo and that Arana gave her a prescription. According to Baez, Arana simply told her to keep Osvaldo's feet dry and let them breathe. Baez ...


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